SCOTUS has Been Slow to React to Trump Tariffs
It appears SCOTUS will not cross a rogue President even if the actions of the office cause harm to the citizens and the overall nation. Left the house burn down? They are safe and it is only the citizens who will pay.
I also suspect there is something else going on here which citizens will not hear about till well after this president leaves office. We are stuck in the middle and paying the price for what we allowed to take office with our votes and not voting.
Profiles in Cowardice, Tariff Edition,
Paul Krugman
The Supreme Court’s silence says volumes.
Source: HBS Pricing Lab
Donald Trump loves tariffs. Mainly, I believe, he loves them because they offer so much opportunity for dominance displays, allowing him to threaten other countries with economic ruin — usually via middle-of-the-night Truth Social posts — unless they bend to his whims. Economists may say that most of the damage inflicted by tariffs falls on American consumers and businesses, not foreigners, but Trump’s attachment to tariffs is doubtless strengthened by economists’ disapproval — he wants to show that he’s smarter than the so-called experts.
Furthermore, tariffs give him power without checks and balances. He can impose huge taxes on imports without having to go through annoying stuff like getting legislation through Congress.
Or can he? By any reasonable standard, most of Trump’s tariffs are plainly illegal. Two lower courts have ruled against them. The Trump administration appealed those decisions, and in early November the Supreme Court heard arguments on the case. Many businesses that have found it impossible to make long-term plans with the fate of the Trump tariffs in limbo eagerly awaited the Court’s ruling.
They’re still waiting. And I can’t see any plausible explanation for the delay other than Supreme cowardice.
Background: Most of Trump’s tariffs have been imposed by invoking a 1977 piece of legislation called the International Emergency Economic Powers Act, which the Congressional Research Service describes as giving the president “broad authority to regulate a variety of economic transactions following a declaration of national emergency.”
But we aren’t in an emergency. Trump himself keeps saying that everything is great — the economy is hot, there’s no inflation, we’re respected around the world. It’s not true, but that’s what he says. And he has been using IEEPA to impose or threaten to impose tariffs for many purposes that have nothing to do with economic policy. He imposed a 50 percent tariff on imports from Brazil to punish Brazil for pressing charges against Jair Bolsonaro, the Trump-like former president who tried to overturn an election loss. He threatened tariffs against European nations who stationed troops in Greenland as a precaution against a possible Trumpian attempt to seize the island from Denmark.
In the latter case Scott Bessent, Trump’s Treasury secretary, pressed on the nature of the emergency that would justify tariff threats, declared that “the national emergency is avoiding a national emergency.” Uh-huh.
I’m not a lawyer, but I talk to lawyers, and this isn’t a difficult case on the merits. Trump is clearly wrong on both the letter and the spirit of the law. And when the Supreme Court held its hearing, the tenor of the questions, even from conservative justices, suggested that they recognized that the administration had no case.
So why have we had three months of silence? Well, this isn’t a difficult case on the merits, but it puts the six right-wing members of the Court between a rock and hard place, not intellectually, but personally.
For a right-wing justice, ruling in the Trump administration’s favor in such an open-and-shut case would amount to admitting that you’re a pure partisan hack. And even the right-wing faction on the court is trying to maintain the fiction that it’s still a deliberative body, not a MAGA rubber stamp.
But to rule against the administration would be to hand Trump a humiliating defeat on one of his signature policy issues. It might also be very expensive. Tariffs aren’t the revenue gusher Trump and his minions like to claim: Even after the Trump hikes in tariff rates, customs receipts are small compared with other sources of revenue and have made only a modest dent in the U.S. budget deficit. But losing that revenue and, worse, having to give it back would be a financial embarrassment.
And it’s hard to see how, if the Supreme Court rules against Trump, the government can avoid paying back the money it has collected to companies like Costco, which has sued for a refund. If the Court rules that the tariffs weren’t legal, can the administration say, “No backsies” and refuse to refund money it collected illegally?
Right-wing justices don’t want to humiliate Trump, and they’re surely afraid of what will happen if they do. So, they’re damned if they do the right thing, damned if they don’t.
When I’ve made this point in the past, some readers have asked why Supreme Court justices would be afraid of crossing Trump. After all, he can’t fire them, can he?
But to suggest that Supreme Court justices are insulated from pressure merely because they have job security is to misunderstand how power and influence work, especially within the modern right-wing movement.
Prominent figures on the right — and the Republican Six on the Supreme Court surely qualify for that definition — aren’t just members of a movement. They’re also part of a social scene — a scene shaped by the wealth and power of billionaires. They share in the privilege and glitter of that scene even if they aren’t outright corrupt — even if they aren’t all like Clarence Thomas*, who, as ProPublica revealed, has taken multiple lavish vacations paid for by billionaire Harlan Crow.
To vote against Donald Trump’s beloved tariffs, delivering him both a policy and a political blow, would be to risk being ostracized and exiled from that milieu. If you don’t think that would matter a lot, you don’t understand human nature.
And more than social estrangement might be at stake. Violent threats against judges and other public officials, especially those denounced by Trump and other MAGA figures, have soared. Are you sure that a judge perceived as having betrayed Trump — and his or her family — would be safe? More to the point, are judges themselves sure?
So, the right-wing majority on the Court is surely afraid to rule on tariffs — afraid to rule for Trump, because that would destroy what’s left of their credibility, afraid to rule against, because that would anger both the MAGA elite and the MAGA base.
So, they’re procrastinating, even though the longer the tariffs stay in place, the more Trump is emboldened to tweet out bizarre, destructive and illegal policies and the more economic damage is done by uncertainty.
Their paralysis is understandable. But it’s also utterly shameful.
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Some detail as to what is reported going on at SCOTUS as reported by other sources in the past.
Paid vacation and gifts for Clarence: “Clarence Thomas tuition: Why the latest revelation is the most insulting of all.” Angry Bear presentation from a Slate Article: “Over the past few weeks we have learned that Justice Clarence Thomas took multiple luxury vacations, valued in millions of dollars, (Propublica) over many years, paid for by Harlan Crow, a billionaire GOP donor who has business before the court. We know that Crow had also contributed the $500,000 seed money that became Ginni Thomas’ Liberty Central, which paid her salary. We also know that Crow purchased the home in which Thomas’ mother currently resides rent-free. And late last week, we learned that Crow paid years’ worth of private school tuition (Propublica) Mark Martin, of whom Thomas had legal custody and whom Thomas was, as he put it, “raising as a son.” Thomas knew that such gifts needed to be disclosed because he did so with another tuition payment gifted to Martin in 2002. But he did not report the tuition Crow paid.” as taken from “slate.com, Dalia Lithwick”
My neighbor, who (along with her husband) is a lawyer, says the real issue isn’t likely to be the tariffs at all; it’s the President’s ability to declare a national emergency. Is it reviewable? By whom? Under what circumstances? Imagine they say, “No, it’s not reviewable, because the law doesn’t provide any path for review” (or whatever), and then Trump, on Nov. 1, declares a national emergency and suspends all federal elections. Then what? With Trump, you clearly can’t give him a blank check, and 7 of the 9 justices would probably agree with that, but then what? What are the limits? The law does not appear to provide much in the way of guidelines here, so they have to make them up without much textual help, and they have to cover, to a reasonable degree, everything related to declarations of national emergency, not just IEEPA. Or, at the very least, figure out what they are going to deal with and what they are going to ignore.
@John,
Publicly, Trump is proclaiming that, thanks to him, America is back and better than ever. So where is the national emergency?
The emergency is (a) his slumping polls and (b) the acknowledgment that he’s term-limited and when he’s out of office, he can’t use his status as POTUS as a shield against the legal system. Not a national emergency, but a personal emergency.
Oh, I totally agree on the facts. But since when has the law had anything to do with facts? (Quote from some book I’ve forgotten.) The President *can* declare a national emergency, and, if he does, is there any mechanism to review that declaration and override it? (Scott Bessent recently said that the national emergency was the need to prevent a national emergency!) If not, then facts have nothing to do with it, since the law doesn’t say anything about what facts are required to make the declaration in the first place.
Basically, the law as written presumed a good-faith president, and, well, here we are. A loophole you could float an aircraft carrier through is still a loophole.
@John,
There are two checks on Trump’s claims: (1) Congress and (2) the SCOTUS. Unless and until Congress acquires the necessary testicularity (see, e.g., the 2026 midterms), (1) isn’t an option. While the right-wing SCOTUS majority has so far largely deferred to Trump on matters of Constitutional law, they *could* suddenly wake up and realize that they’ve opened a door for a Democratic president to walk through.
The Brennan Center’s original research cataloged 123 statutory authorities that become available to the president when he declares a national emergency. Many are measured and sensible, but others seem like the stuff of authoritarian regimes: giving the president the power to take over domestic communications, seize Americans’ bank accounts, and deploy U.S. troops to any foreign country. Given how broad these powers are, it is critical to have adequate safeguards in place to prevent abuse.
The National Emergencies Act, in its current form, lacks those protections. It allows the president to declare emergencies with nothing more than a signature on an executive order, and presidents can renew those emergencies every year ad infinitum. Congress can vote to end an emergency, but it effectively needs a veto-proof majority to do so.
The problems with this system became very clear when President Trump declared a fake emergency to get funding for his border wall after Congress had denied him the funds. Even though a majority of both houses of Congress voted to end this emergency, the president was able to override the veto and continue his blatant misuse of emergency powers.
Presidential Powers to Declare a National Emergency
It really is not an issue with the President as much as an issue with Congress to deny him the ability to call any event a national Emergency when in reality it is a political emergency of his power whims. Republicans should not yield to his desires as the issues of Power grows with this president. He knows no limit to his desire to be a king and not a president.